Court File and Parties

COURT FILE NO.: CR-19-1876 DATE: 20210304

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN D. Mangat, for the Crown

- and -

TREVOR CHRISJOHN A. Karapancev, for the Accused

HEARD: February 1-5, 2021

REASONS FOR JUDGMENT

PUBLICATION RESTRICTION NOTICE By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

PUBLICATION RESTRICTION NOTICE By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

BALTMAN J.

Introduction

[1] This case involves an alleged sexual assault on January 27, 2018. The complainant, K.M., claims that over several hours Mr. Chrisjohn forced her into a prolonged sexual encounter that included fellatio, cunnilingus, and intercourse. Mr. Chrisjohn denies that any sexual contact occurred.

Factual Background

[2] The following facts are largely undisputed.

[3] The events in question began on the night of Friday January 26, 2018 and culminated in the early hours of Saturday January 27, 2018. They took place within a townhouse where K.M. was then living with her boyfriend and his family.

[4] K.M. is now 21 years old. She was 18 when these allegations arose, and living with her boyfriend, Roland, and several members of his family. They included Dorothy (Roland’s mother), along with Michaela, Yasmin, Nathaniel, and Jacob (Roland’s siblings). K.M. and Roland began dating when they were approximately 14 years old, and K.M. had been (more or less) living with Roland and his family for the previous two years. K.M. and Roland remain, to this day, romantically involved.

[5] The family resided in a five-bedroom townhouse. The main floor was largely open concept and contained the kitchen and living room, with only a partial wall separating them. The bedrooms were all upstairs and were occupied in their physical order along the hallway by 1) Dorothy, 2) Michaela, 3) Yasmin, 4) Nathaniel, and 5) Roland and K.M. Jacob lived in the basement, and on weekends his girlfriend stayed with him.

[6] In addition, Mr. Chrisjohn had been living there for approximately two weeks before this event. His family and Dorothy’s family were longstanding, close friends, and he was considered to be “like family” by everyone in the house. Mr. Chrisjohn was in between residences at the time and was therefore staying at Dorothy’s home temporarily until he found new accommodation. During this stay he slept on the living room couch.

[7] Mr. Chrisjohn has a son, Joseph, from a previous relationship who was approximately one year old at the time. On this particular weekend, Joseph was staying there with Mr. Chrisjohn, and a crib was set up in the living room to accommodate him.

[8] Finally, Mr. Chrisjohn’s new girlfriend, Kristen, was also there for the night. It was understood she would sleep with Mr. Chrisjohn in the living room.

[9] In sum, on the night in question, it was a busy house, with nine people [1] occupying the three floors.

Legal Framework

[10] Like anyone charged with a criminal offence in Canada, Mr. Chrisjohn is presumed innocent. For him to be convicted, the Crown must prove him guilty beyond a reasonable doubt. There is no requirement for Mr. Chrisjohn to prove anything, including that he is innocent of the crime charged.

[11] For me to find Mr. Chrisjohn guilty, the Crown must establish his guilt beyond a reasonable doubt. This is a very high standard. While it does not require absolute certainty, proof beyond a reasonable doubt falls much closer to absolute certainty than it does to proof on a balance of probabilities. In sum, the court must be sure he is guilty before he can be convicted.

[12] In this case Mr. Chrisjohn chose not to testify or call evidence. As the burden of proof is on the Crown, this choice does not prejudice Mr. Chrisjohn.

[13] In cases involving allegations of sexual assault, it is important to avoid assumptions and stereotypes as to how victims of sexual assault should or do behave: R. v. A.R.J.D., 2018 SCC 6; R. v. A.B.A., 2019 ONCA 124. At the same time, major inconsistencies by a complainant in a sexual assault case may require the trier of fact to take a cautionary approach to her testimony: R. v. N.M., 2012 ONCA 296, at paras. 44-50; R. v. L.M., 2017 ONCA 33, at paras. 25-34.

The Complainant’s Allegations

[14] The events in question began on the night of Friday January 26th, and ended the following morning, Saturday January 27th.

[15] According to K.M., on the Friday evening she, Roland, Mr. Chrisjohn and Kristen were congregated in the living room, drinking and socializing. At some point, she and Roland went upstairs to their room. They got into an argument. Dorothy overheard them and came into their room. Dorothy scolded Roland for his behaviour and then returned to her bedroom. Roland was upset from the confrontation with Dorothy and went to sleep.

[16] K.M. went into Dorothy’s room. Mr. Chrisjohn and Kristen were there as well. Everyone was drinking alcohol, and Dorothy appeared drunk. K.M. returned to her room. After some time, she went to the washroom and, while she was walking down the hallway to return to her room, she saw Mr. Chrisjohn on the stairwell. He invited her to join him for a drink downstairs and she agreed.

[17] They sat at the kitchen table and he filled two glasses with a brown- coloured liquor. They drank and talked together “for hours”. At one point she saw him mixing something together in a separate third cup, some of which he poured into her glass. He was flirtatious with her, but she did not reciprocate. Eventually she began to feel “weird” and “out of it”.

[18] Mr. Chrisjohn took a pill out of his wallet which he crushed and then snorted up his nose. Later, he took some powder out of a plastic baggie which he placed in a line on his hand. He offered her some, which she declined, but he nonetheless took her hand and poured some powder onto it. Despite her protests, he raised the hand that contained the powder to her face so that she was “forced” to breathe it in. After that, she felt incoherent and “zoned out”.

[19] At that point, she wanted to go back upstairs, but when she tried to get up and leave, she fell. She asked him to help her upstairs, but he instead got her a glass of water. When she tried to get up again, she was wobbly and braced herself against the kitchen sink. He came up behind her and placed his hand against the side of her breast. He told her that he had been admiring her around the house and found her “very attractive”. Then he said, “I really want to bend you over right now and fuck you on the counter”, and he pushed his body up against her.

[20] K.M. felt weak and lowered herself to the ground. Mr. Chrisjohn then declared “I want my dick in your mouth” and proceeded to lower his pants and take out “his private area”, i.e., his penis. He pushed her head forward, pulled her jaw down, and stuck his erect penis in her mouth. She bit down on it, whereupon he pulled his penis out of her mouth.

[21] He then picked her up and she recalls “flying through the air” and landing on the couch in the living room. She felt her pants being taken off and then felt him licking her genital area. He then crawled on top of her, pushed her shirt and bra up, and grabbed her breasts. She then felt him trying to put his penis inside her. He was “grinding” and “thrusting” on top of her, and she is certain that “the tip and more” of his penis went inside her vagina.

[22] She believes that the episode on the couch lasted “hours”. During it, she continuously called out for Roland. She estimated that she called Roland’s name at least 15 times, getting “louder” and “stronger” as she went, such that eventually Mr. Chrisjohn got off her and went upstairs.

[23] Some time after, she followed Mr. Chrisjohn upstairs. She was “angry” and “wanted answers”. She saw him peeking out of Dorothy’s room, but when he saw her, he closed the door and didn’t come out.

[24] She returned downstairs, wondering “how do I get him [Mr. Chrisjohn] downstairs”. She went over to Joseph, who was sleeping in his crib in the living room and tried to “get him to cry so someone would come to pick him up”. When rocking the baby’s crib did not wake him, she found a toy that made noise, which succeeded in waking him. At that point she recalls “just sitting back and just waiting”.

[25] Mr. Chrisjohn then came downstairs to tend to Joseph. She asked him why he had touched her. Initially, he denied that anything happened, but then said if no one else saw it, “nothing happened”. When she told him that what he did to her was “wrong”, he warned her not to say anything.

[26] K.M. then went upstairs to the room she shared with Roland. She considered waking him up and telling him what happened but was worried that he and Mr. Chrisjohn would then get into a fight. Instead, she put on her jacket and boots and went outside on the front lawn, whereupon she texted both Kristen and Dorothy and asked them to come outside. However, Dorothy got her to come back inside and into the kitchen, where Mr. Chrisjohn and Kristen were. Dorothy then yelled at her about fighting with Roland. K.M. said she wanted to kill herself. Mr. Chrisjohn laughed at her.

[27] K.M. then ran out of the house and down the road toward a bridge. When she reached the bridge, she put her legs over the guard rail. A stranger who was out walking his dog came up and pulled her off the rail. When she moved onto the road, he ran onto the road to stop any cars that might hit her. Someone nearby announced the police should be called.

[28] K.M. then ran in the opposite direction but, within minutes, she heard sirens and then saw a police vehicle and several officers approaching her. When she tried to run away, they tackled her to the ground. She was placed in handcuffs and taken into the police cruiser. She saw passerby’s laughing at her and felt embarrassed and upset.

[29] She said nothing about the alleged assault to any of the officers who apprehended her and drove her to the hospital. Nor did she tell any of the medical personnel she initially encountered at the hospital. She felt most of them were mean and treated her like a drunkard and laughed at her.

[30] Eventually she told a nurse at the hospital that she had been sexually assaulted. As a result, later that night, she was taken to Chantele’s Place, a centre for victims of domestic and sexual abuse. There she underwent a sexual assault examination by a nurse and answered various questions about the alleged assault. Both vaginal swabs and external genitalia swabs were taken into evidence. The results of the Sexual Assault Evidence Kit (SAEK) are discussed below.

[31] K.M. testified that she suffered numerous injuries from this assault, in particular bruising “all over” her arms and legs and some near her shoulders and neck. She claimed that some of those bruises were obvious by the time she attended Chantele’s place. A few days later, when the bruising was evident “everywhere” on her body, she attended a walk-in clinic in order to have a physician “document” all the bruises and take photographs of them. She specifically requested a female physician for this purpose. During this meeting she removed all her clothing and showed the doctor all her injuries, so that the doctor could record each one of them.

Analysis

[32] The Crown’s case obviously hinges on the evidence of K.M. For the following reasons I found her to be a highly unreliable witness, and reject her allegations that she was sexually assaulted at any point on this occasion.

Inconsistencies with Medical Evidence

[33] There are profound inconsistencies between K.M.’s testimony at trial and the medical evidence filed in this case. In particular:

1. According to the SAEK report, when asked by the nurse if there was penetration or attempted penetration of her mouth by Mr. Chrisjohn’s penis, and with the choice of answering Yes, No, or Unknown, K.M. answered “unknown”;
2. When asked if there was penetration or attempted penetration of her vagina by Mr. Chrisjohn’s penis, and with the choice of answering Yes, No, or Unknown, K.M. answered “No”;
3. When asked if there was penetration or attempted penetration of her vagina by Mr. Chrisjohn’s mouth (cunnilingus), and with the choice of answering Yes, No, or Unknown, K.M. answered “Unknown”; and
4. K.M.’s body was inspected by the nurse conducting the SAEK, and body maps of her entire body were completed as part of the physical examination form. No injuries or bruising were found anywhere on her body.

[34] K.M. had no coherent explanation for those discrepancies. She conceded that at the time she gave those answers, she was aware that she had experienced forced fellatio, intercourse and cunnilingus. Despite feeling “traumatized” from the ordeal, she knew she was “in safe hands” because the nurse was there “to help her”. She agreed that the nurse asked her simple questions which she answered “truthfully”, and that, at that point, these events were “clear in [her] mind” and she “knew” they had “happened”.

[35] And yet, despite her assertions that Mr. Chrisjohn forced his penis into her mouth, inserted his tongue into her vagina, and put his penis into her vagina, she answered “no” or “unknown” to all those questions. Further, despite alleging that her bruises from the attack were already visible by the time she attended Chantele’s place, the nurse found no bruises or other evidence of injury.

Inconsistencies with K.M.’s prior statements

[36] There are many inconsistencies between K.M.’s evidence at trial and her prior statements, including her evidence at the preliminary hearing. Some of the more material ones are:

• In her direct evidence at trial, K.M. testified she recalled Mr. Chrisjohn “grinding” on top of her and “thrusting” his penis inside her vagina, and that it was possible his whole penis entered her multiple times. However, in her police statement she said she did not think Mr. Chrisjohn penetrated her, and she did not mention “grinding” or “thrusting” in either her police statement or at the preliminary hearing;
• At trial, K.M. stated that Mr. Chrisjohn forced his penis into her mouth by pushing it open with his hands, a description she never used in the police statement or at the preliminary hearing;
• At trial, for the first time, K.M. described how she “gagged” or “choked” on Mr. Chrisjohn’s penis;
• At trial, K.M. testified that Mr. Chrisjohn removed a pill from his wallet and crushed it in front of her, something she never mentioned previously;
• At trial, K.M. stated that after the attack, when she was outside the house, she texted Dorothy and Kristen, asking them to “come down” and “come outside” because she wanted to talk to them; however, the text messages filed in evidence reveal nothing of the sort.

[37] Not only did K.M. not have any plausible explanation for these discrepancies, in several cases she denied they even existed, insisting that she had reported certain facts to the police or at the preliminary hearing when, as Crown counsel conceded – and the transcripts prove – she clearly had not. Ultimately, it was only through an Agreed Statement of Facts, assembled by Defence and Crown counsel and filed before her cross-examination concluded, that the record was made clear.

Absence of Corroborative Evidence

[38] As a rule, the Crown is not required to provide corroborative evidence of a sexual assault. These crimes are very often committed in secret, without witnesses present. Nor does the absence of injuries or bodily fluids mean that an assault did not occur.

[39] However, in her evidence in chief, K.M. testified that she saw bruising on the day of the assault, and, within a few days after, had extensive bruising “all over” her body that was “clearly” visible. She stated she took photos of the injuries and consulted a female doctor at a walk-in clinic expressly for the purpose of “documenting” those injuries.

[40] Yet at trial the Crown produced neither the photos that K.M. supposedly took of her injuries, nor the clinical notes from the physician whom K.M. allegedly consulted to record those injuries. And no explanation was offered for why, after K.M. went to such lengths to document her injuries, that evidence was never produced at trial. While the Crown is not required to provide physical evidence of this nature, the absence of corroborative evidence that K.M. claimed exists contributes to a reasonable doubt regarding her allegations.

Contradictions from the Evidence of Dorothy Marchant

[41] Dorothy’s role as a witness in this case is a sensitive matter. Although the Crown called Dorothy Marchant as its witness, her evidence was in fact highly exculpatory of Mr. Chrisjohn. Moreover, her involvement as a witness has strained her relationship with her son Roland because, while K.M. no longer lives with the Marchant family, Roland continues to be in a romantic relationship with her and continues to live in Dorothy’s home. Dorothy testified that, while she is proud of Roland’s love for and loyalty to K.M., she nonetheless feels bound to “tell the truth”.

[42] Significantly, both counsel maintain that Dorothy was a “candid” and “forthright” witness. I agree. Particularly striking in Dorothy’s evidence was her repeated assertions that, until this event occurred, she was on good terms with K.M. and found her easy to get along with. Dorothy testified convincingly that while K.M. was generally shy and withdrawn, she was “like family”.

[43] Further, although Dorothy was unclear on the precise times when certain events occurred, her narrative in general was coherent and logical. She was only lightly and briefly cross-examined, and those answers merely strengthened her testimony in chief.

[44] Dorothy’s evidence contradicted K.M.’s version of this event in many significant aspects. In particular:

a) Dorothy testified that the house was busy both that night and into the early morning, with several people conversing and moving about the upper floor and the main floor. As the Crown conceded, contrary to K.M.’s assertion that this assault continued over several hours, on Dorothy’s evidence there was only a narrow window of a few minutes where the assault could have gone unseen by anyone. Accepting that K.M.’s perception of time may have been affected by any alcohol she consumed, it is highly improbable that the prolonged attack she described was not spotted by anyone.

b) Dorothy described the walls in the house as “paper thin”. For the entirety of the alleged assault she and Nathaniel were both upstairs in their respective bedrooms, and the baby remained asleep in the living room. For much of the event Kristen was asleep in the living room and Dorothy had the baby monitor on in her bedroom. Jacob, who is a light sleeper, was with his girlfriend in the basement, below the room where the assault supposedly took place. Yet, despite K.M.’s assertion that she was forcefully removed from the kitchen and thrown onto the couch in the living room, endured a grinding and prolonged rape, and called out for Roland to help her at least 15 times, no one heard anything amiss.

c) According to Dorothy, K.M. was acting out of character that night. Normally a shy and withdrawn person, that night K.M. sat very close to Mr. Chrisjohn while they were in Dorothy’s bedroom.

d) Dorothy testified that somewhere between 2:00 a.m. and 3:00 a.m., K.M. re-entered Dorothy’s room and they spoke further. K.M. made no mention whatsoever of any misconduct by Mr. Chrisjohn. However, K.M. did confide to Dorothy that both K.M.’s father and uncle had sexually molested her in the past. She told Dorothy that she felt alone and that no one cared for her. [2]

In her testimony K.M. denied making those statements to Dorothy, and described Dorothy as “drunk” and belligerent that night, and “not a good mother” in general. But K.M.’s text messages to Dorothy that night show that, when these events occurred, K.M. trusted and respected Dorothy. In her text of 3:12 a.m., K.M. apologizes for her behaviour and expresses her appreciation for Dorothy:

Hey I swear I am so sorry like i hope you understand the way I was trying to tell people I feel so bad I don’t know what to say I wish I could say something besides I’m sorry

I hope you have a good night and if you need anything I’ll be up I know this is nothing what you probably expected to walk into although I don’t think your easily scared off by it.

And Thanks for talking with Roland. Though I doubt you minded. I felt such a connection with everyone it was like a group of friends. And how you sincerely went to talk with roland, like I know And i understand you were being nice but You were also being a genuine human being and you took away your whole night you made sure people you didn’t know were okay :)

I know it’s a lot to take in but your so sweet Thank you for talking with me even for those couple of minutes As well I myself appreciated it.

[Emphasis added]

Shortly after, at 3:33 a.m., K.M. send a further text asking to return to Dorothy’s bedroom:

I’m nervous [to] come back..

Hey …do you think I can come back in the room I understand you two are having personal conversation

e) Dorothy testified that Mr. Chrisjohn remained chatting with her until approximately 5:30 a.m., when he headed down to the living room to join Kristen and the baby. At that point Dorothy turned off the baby monitor. A few minutes later, Dorothy heard someone stumbling on the stairs leading to the second floor, and, upon checking, saw that K.M. had fallen on the stairwell and Mr. Chrisjohn was helping her get up. Dorothy and Mr. Chrisjohn helped K.M. into Roland’s room.

On Dorothy’s evidence, which I accept, those “few minutes” – from when Mr. Chrisjohn left her room until she saw him helping K.M. on the stairwell – were the only “window” of time where Mr. Chrisjohn could have committed the prolonged, multi-faceted assault described by K.M. in her evidence – an event that allegedly traversed two rooms, consumed “hours” of time, and included forced consumption of a narcotic followed by fellatio, cunnilingus, and intercourse. I find that scenario highly unlikely, if not impossible.

f) Dorothy testified that at approximately 6:30 a.m., while she was in the kitchen getting a drink of water, K.M. came downstairs, dressed to go outside. K.M. was extremely upset and emotional. She again referred to the molestation by her father and uncle and declared that no one cared about her. Despite Dorothy’s attempts to reassure her, K.M. remained extremely agitated and soon ran out of the house. Throughout this exchange, K.M. made no mention whatsoever of any misconduct by Mr. Chrisjohn.

g) A short while later, the police showed up at Dorothy’s door and advised that K.M. had tried to jump off a bridge and was being taken to the hospital by ambulance. As no one in the house had a car available, Mr. Chrisjohn arranged for his older brother (Jason) to drive Roland to the hospital.

[45] At several points in her testimony, Dorothy was particularly emphatic about the following:

➢ She never saw any type of sexual behaviour between K.M. and Mr. Chrisjohn; ➢ She never saw or heard K.M. and Mr. Chrisjohn alone together on the main floor; ➢ Despite the walls being “paper thin”, she never heard any sexual activity or other strange behaviour coming from the kitchen or living room; ➢ She never heard K.M. yelling Roland’s name from the main floor; ➢ Although the baby was in his crib in the living room throughout the alleged assault, at no point did he cry out.

[46] I found Dorothy’s evidence highly credible and consistent. She shows no animus toward K.M. At several points, Dorothy emphasized that K.M.’s conduct on this night was very much out of character. Although she had always found K.M. to be shy and quiet, up until this evening they had an amicable relationship. Moreover, as I’ve noted, Dorothy’s presence as a Crown witness has strained her relationship with her son, who remains in an intimate relationship with K.M.

[47] I further find that the evidence as a whole negates K.M.’s allegations. It is not necessary for me to decide whether K.M. honestly believes her assertions in this case or whether, as the defence argues, she has consciously fabricated them in order to mislead the court. Either way, for the reasons set out above, they clearly have no merit, and leave me with more than a reasonable doubt.

Conclusion

[48] The charge is dismissed.

Baltman J.

Released: March 4, 2021

[1] Michaela and Yasmin were staying elsewhere that weekend.

[2] In a previous ruling, André J. determined that K.M.’s statements regarding the alleged misconduct by her family members and feeling neglected did not engage s. 276 of the Code: R. v. Chrisjohn, 2020 ONSC 5728